Greetings, Court fans!
We’re back to bring you Part II. But given the Court’s release of 5 full decisions and a per curiam opinion Monday, as well as an Order List, we will again break things up – so there will be a Part III. After this minor blitzkrieg, the Court will be on recess, so we’ll have a nice break before the real onslaught begins.
One of the Court’s most newsworthy decisions came in Crawford v. Metropolitan Government of Nashville (06-1595) , where the Court held that the antiretaliation provisions of Title VII protect not only employees who initiate complaints about discrimination, but also those who speak out about sexual harassment in response to questions by their employer. In the course of conducting an internal investigation into rumors of sexual harassment by Gene Hughes, a supervisor, Metropolitan interviewed Vicky Crawford, who disclosed several instances of harassment by Hughes. Hughes kept his job, but Metropolitan later terminated Crawford for alleged embezzlement. Claiming that she was retaliated against, Crawford brought suit under Title VII, which forbids discrimination against an employee who either “opposed” an unlawful employment practice (the “opposition clause”) or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter” (the “participation clause”). 42 U.S.C. § 2000e-3(a). The district court threw out the lawsuit after determining that Title VII’s antiretaliation provisions didn’t protect Crawford because: (1) she did not instigate or actively pursue the complaint, which the court found necessary to satisfy the “opposition clause,” and (2) the internal investigation was not pursuant to a pending EEOC charge, which the court found necessary for the “participation clause.” The Sixth Circuit agreed. Reversing, Justice Souter (for all but Justices Alito and Thomas) explained that “oppose” should not be construed so narrowly. For example, while a person who actively campaigns and protests against capital punishment surely “opposes” it, a person who simply discloses a belief against that form of punishment would also be understood to “oppose” it. An employee’s communication to her employer about sexual harassment “virtually always” constitutes opposition to the behavior. And “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination . . . when her boss asks a question.” Justices Alito and Thomas concurred in the judgment only. While they believed Crawford’s conduct was covered by the “opposition clause,” they wrote to make clear that the Court’s present holding did not reach beyond employees who participate in internal investigations or engage in similar “purposive conduct.” In their view, this decision would not control the claim of an employee who complained about harassment to her sister while having drinks after work, and who claimed that she was fired because her employer overheard the conversation.
Turning from employment discrimination to discrimination by educational institutions, in Fitsgerald v. Barnstable School Committee (07-1125) , the Court dealt with a claim of peer-on-peer sexual harassment in the public school setting. Plaintiffs contended that their daughter, a kindergartner, was repeatedly sexually harassed by a third grade boy on the bus. After investigating the matter, the school determined that there was not sufficient evidence to punish the boy, and offered instead to move the girl to another bus or to put empty rows between the kindergartners and older children on the bus. Feeling that these offers only punished their daughter, plaintiffs suggested instead that the boy be moved to a different bus or that a monitor be placed on the bus. The school didn’t respond to these requests and the parents ended up driving their daughter to school. Notwithstanding this, the daughter continued to be bullied by the boy during school and was absent frequently. The parents filed suit claiming that the school system’s response to their allegations had been inadequate and that, as a result, their daughter continued to be harassed. They brought several claims, including one under 42 U.S.C. § 1983, alleging a violation of the Equal Protection Clause of the Fourteenth Amendment. The district court dismissed the suit in its entirety. With respect to the § 1983 Equal Protection claim, it found that Congress intended that Title IX be the exclusive mechanism for redress of gender discrimination perpetrated by educational institutions; the First Circuit affirmed.
The Court reversed in a unanimous decision penned by Justice Alito. The key was whether Congress intended Title IX to be the exclusive mechanism for enforcing the rights at issue. The short answer: No. Other statutory schemes that have been found to preclude relief under § 1983 typically share two features: (1) the statutes provide a comprehensive remedial scheme; and (2) the remedial framework provided by Congress imposes requirements or limitations on plaintiff (such as a limitation on the types of remedies available or a requirement that plaintiff exhaust administrative remedies before filing suit) that would be undermined by allowing a parallel § 1983 claim. Title IX’s only express enforcement mechanism is an administrative procedure that can result in the withdrawal of federal funding from a school – hardly “comprehensive.” Further, the Court long ago implied a private right of action under Title IX that provides the full range of remedies without any procedural barriers. As a result, “parallel and concurrent § 1983 claims will neither circumvent required procedures nor allow access to new remedies.” Moreover, Title IX and § 1983 do not overlap perfectly. Title IX is both more expansive than § 1983 (covering nonpublic institutions that receive federal funds) as well as more narrow (not covering suit against school officials) and the standards for liability are not wholly congruent. These divergences further support allowing § 1983 claims for unconstitutional gender discrimination. Finally, in enacting Title IX, Congress expressly authorized the AG to intervene in private suits alleging discrimination on the basis of sex in violation of the Equal Protection Clause, 42 U.S.C. § 2000h-2, a clear indication that Congress did not intend to foreclose such suits.
Next up, in Van de Kamp v. Goldstein (07-854), the Court, again unanimous, clarified and arguably expanded the already broad protections offered by prosecutorial immunity. Previously, in Imbler v. Pachtman , the Court held that prosecutors had absolute immunity for actions that were “intimately associated with the judicial phase of the criminal process.” At the same time, the Court noted that prosecutors would not have absolute immunity when they were not acting as officers of the court, for example, when they engaged in “administrative tasks.” The question in Van de Kamp was how and where to draw the line.
Plaintiff Goldstein had been convicted of murder based on the testimony of a jailhouse informant (whose name, appropriately, was Fink). After serving 24 years of his sentence, Goldstein succeeded in obtaining a writ of habeas corpus on the ground that prosecutors had failed to inform his trial attorney that Fink had received reduced sentences for providing prosecutors with favorable testimony in other cases. Goldstein then brought the instant § 1983 action against the former district attorney and chief deputy district attorney of the office that prosecuted him. Goldstein alleged that the violation of his constitutional rights stemmed from the defendants’ failure to supervise and train the prosecutors working under them, and their failure to establish an information system to record and disseminate information about informants. In a short opinion by Justice Breyer, the Court held that, although Goldstein was challenging certain administrative procedures, those procedures were directly connected to the conduct of a trial. Put another way, claims like Goldstein’s depended on the complained-of procedures leading to a violation in a particular trial. Moreover, the administrative actions and decisions at issue called upon prosecutors’ legal knowledge and discretion. Thus, the Court held, the defendants were entitled to absolute immunity.
In yet another unanimous decision, the Court expanded, if but slightly, the circumstances under which a police officer may “stop and frisk” a passenger in a car that has been lawfully stopped. In Arizona v. Johnson (07-1122), the officer asked Johnson to step out of the car after noticing that he wore a bandana with Crips gang colors and said he had served time for burglary and was from a town the officer knew to be home to a Crips gang. At trial, the officer testified that she wanted to ask Johnson about the gang outside the hearing of another passenger in the car. When the officer patted him down, she discovered that he was carrying a gun. Johnson was convicted of gun possession charges, but an Arizona appellate court reversed, reasoning that the lawful detention in connection with the traffic stop had turned into a separate, consensual encounter regarding potential gang affiliation, and that, at that point, the officer lacked the reasonable suspicion necessary to pat him down. The Court, this time led by Justice Ginsburg, reversed. The Court’s prior decisions established that a lawful stop does not end until the officer indicates that the driver and passengers are free to leave. As long as it does not measurably increase the duration of a lawful stop, the officer may ask the driver and passengers questions unrelated to the reason for the stop without converting it into something other than a lawful stop. And as part of that lawful stop, the Court held, to protect the officer’s and the public’s safety, the officer may pat down the driver and passengers for weapons without violating their Fourth Amendment rights.
Finally, in Nelson v. United States (08-5657), the Court issued a brief per curiam opinion again emphasizing that not only are the Sentencing Guidelines not mandatory, but trial judges cannot treat them as presumptively reasonable either. The Court already said as much in Rita v. United States (2007) and Gall v. United States (2007), so this was not exactly a shocker (though it is a bit shocking that lower courts haven’t gotten this right yet). The district court had calculated Nelson’s Guidelines range sentence and then indicated that unless there was a “good reason” to depart based on the statutory sentencing factors set out in 18 U.S.C. § 3553(a), the Guidelines sentence was “the reasonable sentence”; Nelson was sentenced accordingly. The Fourth Circuit affirmed, but the Court vacated in light of Rita. On remand, the Fourth Circuit once again affirmed without briefing, finding that the district court took into account the advisory nature of the Guidelines when imposing its sentence. The Court again reversed because it was clear that the trial court improperly presumed that the Guidelines sentence was reasonable instead of making its own independent judgment of reasonableness after reviewing the Guidelines and the Section 3553 factors.
We’ll stop here for now, but look for Part III in your inbox later this week.
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400